Today, the U.S. Supreme Court agreed to hear the case of Jesner v. Arab Bank in order to resolve a single issue: “[w]hether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.” This post will briefly review the case and offer a quick assessment of the ATS corporate liability issue. Longtime readers will not be surprised to read that I side with the Defendants on this issue, although I will also add that I think my side on this case will have an uphill battle to prevail in the high court.

Should the Court have agreed to hear the case?

The Court’s decision to hear the case is a bit surprising given that it had refused to hear at least two cases raising the same issue in the previous two terms. On the other hand, the Court’s decision to hear the case is also quite understandable given the fairly sharp split between lower circuit courts on the question. Such an enduring split among the opinions of lower courts is always an important factor for the Court in deciding whether to hear a case. The rather dramatic divisions among judges on the Second Circuit Court of Appeals on this issue probably caught the Court’s attention as well.

Still, it is also worth noting that the Court granted cert on this exact same issue not six years ago when it first agreed to hear Kiobel v. Royal Dutch Petroleum in the fall of 2011. The parties submitted briefs and held oral arguments on the corporate liability issue itself. But during argument, the Court decided that the question of whether the Alien Tort Statute has extraterritorial reach needed to be resolved first, and sent the case back for re-argument the next term. That re-argued case eventually became the 2013 Kiobel decision sharply limiting the extraterritorial scope of lawsuits brought under the ATS to cases that “touch and concern” the territory of the U.S. The corporate liability issue was left fully argued and untouched.

To be sure, since 2013, several other circuit courts have issued opinions on the corporate liability issue and all have split from the original Second Circuit Kiobel decision denying corporate liability under the ATS. And the Court may have a new member by the time Jesner v. Arab Bank is decided. So while that is a possible reason for reversing course and granting cert, it is still unusual for a Court to hear a case on the exact same issue it already heard in argument a few years ago.

What Law Should Determine Whether Corporations Should Be Liable Under the Alien Tort Statute?

One of the more annoying hard-to-explain legal issues in ATS cases is also one of my favorite law-nerd issues: what law should govern? On its face, the ATS calls for the application of “the law of nations” but courts have long disagreed about whether international law also applies to questions such as standards for aiding and abetting liability and whether a corporation can be liable. ATS plaintiffs have typically argued that these questions should be governed by domestic law, that is to say, federal common law. Under federal common law, corporations are typically liable for torts and application of this law would almost certainly favor the plaintiffs on this question.

But the Court has never fully resolved this issue. To me, it has always seemed that any questions affecting the substance of a case against an ATS defendants should be governed by international law, as the ATS’ text seems to demand. The temptation to fill in the many gaps left by international law with U.S. common law is strong, but the ATS clearly sought to ask US courts to apply international law. Getting past that textual directive will be difficult for me, and I suspect the textualist-oriented justices on the Court.

Will Justice(?) Gorsuch’s Vote Matter?

The circumstances of this grant for cert, which occurred after several prior opportunities were rejected, does not bode well for respondents. Nor is the fact that the cert grant adopts the petitioners’ phrasing of the issue word-for-word. I would be particularly troubled by the Court’s decision to phrase the question as whether the ATS “categorically” forecloses corporate liability. This is plainly language structured to favor the plaintiffs’ case.

My views on the ATS corporate liability question should be well known to most OJ readers. I think the issue of corporate liability should be governed by international law and that the strict standards for recognizing an actionable norm under the Court’s prior decision in Sosa precludes recognizing an ATS cause of action against corporations. I joined a great amicus brief saying basically that in the original Kiobel case back in 2012.

I have also recognized, however, that this is pretty formalistic argument that is unusually unattractive to most observers. Still, the international norms haven’t really changed since 2012. Plaintiffs will not be able to cite to many (or any) sources that hold corporations liable for violations of international law norms. But they can still pound the table and simply say it is ridiculous to “immunize” corporations for torts, which I think still has quite a bit of force. The response has got to be that corporations are often liable for torts, but not always. Even under domestic law, the U.S. Supreme Court has foreclosed corporate liability for certain statutes (like the Torture Victim Protection Act) or for constitutional norms in the context of Bivens actions).

This leads me to Judge/Justice Gorsuch. Since the case will be heard next term, Judge Gorsuch will have a chance to rule on the case if he is confirmed. Will he be willing to sign on to a formalistic/textualist interpretation that is extremely normatively unattractive? I don’t know enough about Judge Gorsuch to know, but I am not sure this will matter. My guess is that Justices Roberts and Kennedy were sufficiently repulsed by the idea of ruling against ATS corporate liability back in 2012 that they sought (and found) a different way of resolving the case. I suspect (without having any inside information) that they would like to find an out again. If they can’t, I can see a 6-3 opinion for the plaintiffs, with Chief Justice Roberts writing an opinion that he tries to make as narrow as possible.

So that’s my first take on Jesner v. Arab Bank. I will no doubt be back for more. Stay tuned!

Reading Roger’s post last week about how lower courts are interpreting the Supreme Court’s ATS ruling in Kiobel made me recall that I’ve fallen down in posting papers to SSRN – including a new one in the Cato Supreme Court Review 2012-2013, “The Alien Tort Statute’s Jurisidictional Universalism in Retreat.” The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities. It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on “international law ” through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel’s return to traditional jurisdictional categories.

Whether the Chief Justice’s application of the presumption against extraterritoriality or Justice Breyer’s more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter. One could say, of course, that this has been true for a while. After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn’t take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law – well, that isn’t making any sweeping assertions about being international law or universal jurisdiction for the application of international law. It’s just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be.

International law in the subjunctive mood, maybe we could say. But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a “law of nations” that we don’t mean the way other people mean it, argues strongly for a traditional approach to jurisdiction – it’s not universal jurisdiction anymore, because we’re not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality. So it doesn’t seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn’t truly a claim of universality, either. (more…)

The Second Circuit’s decision in Balintulo v. Daimler (already discussed at length by John Bellinger at Lawfare) is one of the first major U.S.court opinions to apply the Supreme Court’s decision in Kiobel. It is pretty much a complete smackdown of the ATS plaintiffs, and for any hopes they might have that the Kiobel decision’s bar on extraterritoriality for ATS suits would be read narrowly. While they were at it, the Court pretty much kills every other kind of ATS lawsuit as well. In particular, it rejects the notion that mere corporate nationality in the U.S. would be enough to overcome the Kiobel bar. Here is a key passage (emphasis mine).

About the same time (April 2013) that the US Supreme Court released its opinion in Kiobel v. Royal Dutch Petroleum, the Court also granted review of a Ninth Circuit case, Bauman v. DaimlerChrysler. Just ahead of the July 4th weekend, the Obama administration submitted what John Bellinger, in a lucid post over at Lawfare, describes as a “remarkably strong” amicus brief urging the Court to

reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler. The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear. The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”

The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel

held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States. Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.

I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts. My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different – what I’ve sometimes called the “law of the hegemon.” That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration’s political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction.

But it also seems the Court is also generally on board with this pull-back. As Bellinger says, many observers (me included) believe that

the Court would not have accepted the case unless it plans to reverse the Ninth Circuit. Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.

I agree. Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground – an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction. (more…)

[Dr. Elizabeth A. Wilson is Assistant Professor at the School of Diplomacy and International Relations at Seton Hall University.]

In the “Insta-Symposium” conducted here after the Supreme Court’s Kiobel decision, Peter Spiro linked to a piece by Samuel Moyn about Kiobel posted on the Foreign Affairs website and said he was “sympathetic” with Moyn’s conclusion that “human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.” Not willing to go quite so far as Moyn in celebrating the ATS’s demise, Spiro nonetheless said, “pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.” These criticisms connect with important debates happening now concerning the “legalization” of human rights and the ability of human rights to offer “a real politics of change,” in Beth Simmons’ words, so it is important to see what lessons the Kiobel case and its underlying facts really teach.

For those not specialized in human rights, Moyn is a professor of history at Columbia who wrote a book called The Last Utopia in which he argued for a revisionist account of human rights history, stressing the discontinuity of human rights– imagined as they are today as a feature in an international legal system — with a host of ideas and events usually taken as antecedents, including the Universal Declaration of Human Rights, the American Declaration of Independence, and the French Declaration on the Rights of Man and the Citizen. In his Foreign Affairs post on Kiobel, Moyn folds the ATS into this iconoclastic revision of human rights history, stating that the “ATS strategy” favored by American human rights lawyers “resulted in a narrow approach [i.e., a legal approach] that marginalized other options,” doing nothing “to address underlying political and economic problems.” “Far better,” he opines,” to move onto other ways of protecting human rights – less centered on courts, less rushed for quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad.” Moyn asserts that “[t]here is little evidence…that the wave of ATS litigation has put a dent in the world’s suffering,” though he provides no evidence to support this claim.

I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to the principal antifraud provision of the Securities Exchange Act.

As the Court in Kiobel itself, as well as many commentators (myself included) have observed, the presumption against extraterritoriality has traditionally applied only to what are generally referred to as “conduct-regulating” rules. These are rules that govern primary conduct and are easily classified under the category of jurisdiction to prescribe or prescriptive jurisdiction. Yet as the Court in Kiobel also explained, the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the conduct-regulating rule under the statute comes from international law. And since international law applies everywhere, the presumption against extraterritoriality has no application to conduct-regulating rules of decision under the ATS. The Court appeared to accept this view, noted that the ATS was “strictly jurisdictional,” and then decided to apply the presumption anyway. In so doing, the Court explained that “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality,” which the ATS failed to do.

[Jordan Wells is a third-year law student at New York University School of Law.]

The discussion up to this point naturally has centered on the “touch and concern” language of the majority opinion and what that opinion and the concurrences mean for ATS cases involving law of nations violations that occur abroad. Relatively little analysis has focused on the original questions on which the Supreme Court granted certiorari—namely, whether corporations are immune from suit under the ATS and whether that immunity is an issue of subject matter jurisdiction or an inquiry going to the merits. Remember, the Second Circuit dismissed the case sua sponte based on these two premises. In contrast, the D.C., Seventh, Ninth, and Eleventh Circuits have rejected corporate immunity under the ATS.

While many commentators quickly observed that the Court did not explicitly rule on corporate liability, the majority opinion at least tacitly assumes the existence of corporate liability. As specific evidence of the Court’s recognition of corporate liability, some have pointed to one of the majority opinion’s concluding lines: “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” This sentence was quoted with approval in Justice Breyer’s concurrence. The statement that a corporation’s mere presence does not suffice suggests that the inverse proposition is also likely to be true: A corporation that is more than merely present in the United States – say, one that is domiciled in the United States or one that authorizes or ratifies a law-of-nations violation – could present a different case. It would be pointless to draw this distinction unless, under some circumstances, the ATS countenanced corporate liability.

Whatever one’s take on corporate liability following Kiobel, I want to suggest that it probably is not an issue of subject matter jurisdiction (SMJ). Although the Second Circuit’s dismissal was for lack of SMJ, and although the Supreme Court “affirmed” the judgment of the Second Circuit, it explicitly did so on other grounds. If those other grounds were non-jurisdictional, instead going to the merits, then the Court necessarily found SMJ. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83. The question thus is whether the Supreme Court’s affirmance constituted a dismissal for lack of SMJ, or instead was a dismissal on the merits.

Contextual clues in the Chief Justice’s opinion—in particular, the application of the presumption against extraterritoriality (PAE)—indicate that the Court went beyond the issue of SMJ and reached aspects of the merits. The Court concluded that “[o]n these facts,” the PAE barred relief in this case. There are certain limited circumstances in which a federal court may dismiss on the basis of threshold issues before ascertaining its SMJ, see, e.g., Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (dismissal on ground of forum non conveniens), Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) (dismissal on grounds of personal jurisdiction), but the Supreme Court generally has treated the application of the PAE as going to the merits. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (“[T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question.”); c.f.Burks v. Lasker, 441 U.S. 471, 476 (1979) (“[W]hether a cause of action exists is not a question of jurisdiction.”). The Kiobel majority opinion does not depart from this understanding of the presumption’s application. See slip. op. at 5 (citing Morrison for proposition that “question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction”). The Court therefore appears to have dismissed the case on the merits, not for lack of SMJ.[1]

The fact that the ATS is “strictly jurisdictional” appears not to transform application of the PAE into a jurisdictional inquiry. Although the Court does not use…

I come late to this discussion. Professors Alford and Whytock have adeptly explored the question of whether international human rights litigation might be reframed under state tort law. To their observations, I would add the following: Because state choice-of-law methodology is incredibly diverse, it is difficult to make predictions or generalizations about the overall prospects for human rights cases in state court. Regardless of what the general landscape might hold, however, it is easy to imagine scenarios in which foreign plaintiffs successfully pursue human rights claims arising abroad by invoking state tort law. Consider a claim subject to the conflicts methodology used in California, known as comparative impairment. Although comparative impairment is among the more nuanced and sophisticated of modern conflicts methodologies, it is also persistently biased toward forum law. For example, before a California court will even consider the possibility of applying foreign law, the party advocating for the application of such law must demonstrate that foreign law materially differs from California law and that the foreign jurisdiction has an interest in having its law applied. Given the near-universality of tort law principles of some sort, the first requirement, in particular, may prove problematic for defendants arguing that their conduct should be governed by a foreign jurisdiction’s laws. Comparative impairment additionally favors forum law when it comes to damages. Courts applying California conflicts methodology have consistently held that foreign jurisdictions have no interest in limiting damages as to non-resident defendants. Even in some cases involving defendants who are residents of the damages-limiting jurisdiction, some courts have applied California law.

It is easy to imagine how these principles could converge to create appealing prospects for human rights plaintiffs seeking to bring state tort claims. Indeed, recent cases like Bowoto v. Chevron, in which the court applied California law to claims by Nigerians for activities undertaken by Chevron in Nigeria, provide a ready template.

The possibility that some human rights litigation will be displaced into state court is thus very real, even if the extent of that displacement is difficult to predict. And that leads me to a further observation. To the extent that state courts increasingly operate concurrently with federal courts as forums for the litigation of cases with extraterritorial elements, the disparate treatment of extraterritoriality issues under state and federal approaches becomes ever more problematic. And Kiobel seems likely to compound those problems, not only because it pushes another category of foreign-squared or -cubed cases into state court, but because it takes the federal law of extraterritoriality in a direction increasingly incompatible with state conflicts approaches.

What do I mean by this? I see two main ways in which Kiobel’s reasoning is likely to impede useful dialogue between federal and state approaches. The first is the meaning, and relevance, of territory in assessing the scope of a sovereign’s prescriptive jurisdiction. Everything about Justice Roberts’s opinion reflects a narrow, stubbornly physical notion of territoriality. He seeks to crisply cordon off from the ATS’s reach “conduct occurring within the territorial jurisdiction of another sovereign” – a category that (because it assumes a definition of territorial jurisdiction based on the physical location of conduct) seems both question-begging and potentially troublesome to apply in practice. And his odd final formulation – that the presumption might be “displace[d]” as to claims that “touch and concern the territory of the United States” – suggests an even more constrained view of the relationship between law and territory. Justice Roberts’s territoriality is one not of a sovereign, but of a landowner. By contrast, modern state conflicts approaches, in reaction (perhaps overreaction) to the rigidly territorial approach of the First Restatement, have tended to sideline territoriality entirely. Famously, modern conflicts approaches tend to privilege the parties’ domiciles over the site of relevant events; even when location of events does come into play, the place of both conduct and injury may frequently be relevant. But even more broadly, modern conflicts doctrine speaks in terms of relationships and interests. It has done more than reject territorial formalism; it has made it largely irrelevant.

Second, and more practically, Kiobel cements the sense that the Court has conclusively abandoned an approach to extraterritoriality grounded in comity and international norms in favor of one rooted entirely in statutory interpretation. Whatever might be said for or against this shift more generally, it virtually guarantees that state courts applying predominantly common law will find little or nothing in the Court’s recent case law to guide them. This is not for lack of interest or concern on the part of state courts, which have often earnestly attempted to follow the Court’s extraterritoriality approach to the extent that they can. In the wake of Morrison, some state courts have interpreted state statutory law to be consistent with its federal models; some state courts, for example, have limited the extraterritorial application of state RICO statutes in light of federal precedents doing the same. But Morrison or Kiobel shed precious little light on the question of how far state law should extend when no legislative intent exists about which to make presumptions.

All of this means that state conflicts doctrine and principles governing the extraterritorial reach of federal statutes are likely to drift farther apart. Further, it means that state courts are bereft of guidance at a time when they are increasingly likely to need it. State choice-of-law doctrine, developed to deal with trivial interstate differences over guest statutes or interspousal immunity, seems increasingly provincial when it is pressed into service for weighty matters of corporate responsibility and human rights. It is possible that, for the moment, personal jurisdiction and forum non conveniens issues will forestall a rush of foreign-cubed plaintiffs into state courts. But if not, where do we go from there?

[Milan Markovic is an Associate Professor of Law at Texas Wesleyan University School of Law.]

When the Supreme Court originally granted certiorari in Kiobel, many feared that it would bar ATS suits against corporations entirely. The Supreme Court’s actual decision bars ATS claims that do not “touch and concern” United States territory. I tend to agree with Marty Lederman that there are at least three categories of ATS cases that might survive Kiobel, but even if Kiobel requires substantial conduct on U.S. territory, the decision should not alter the playing field between ATS plaintiffs and defendants in a meaningful way.

Because of the high profile nature of ATS cases, few, if any, corporate defendants wish to be drawn into protracted litigation concerning their complicity in human rights violations. They are especially motivated to avoid expensive and potentially embarrassing discovery. Many defendants will consider settling if they cannot prevail on a motion to dismiss. Corporate defendants have prevailed in many ATS cases, but as the U.S. Chamber of Commerce’s press release in response to Kiobel intimates, they have generally incurred substantial costs to do so.

ATS complaints post-Kiobel are likely to focus on actions that are undertaken in the United States. Without the benefit of discovery, however, plaintiffs cannot know the full extent of a defendant’s activities. For example, a plaintiff may be able to allege that serious human rights violations in a foreign country were financed from the United States. This in and of itself might not be sufficient to rebut the presumption against extraterritoriality, but further discovery might reveal other activities of the kind referenced in Roger Alford’s post. It is not clear whether Kiobel was dismissed under F.R.C.P. 12(b)(1) or 12(b)(6), but under either standard, plaintiffs will not be required to demonstrate without discovery that the conduct on U.S. territory was of sufficient force to displace the presumption against extraterritoriality. Under the former, ATS plaintiffs will most likely have to plead a prima facie case of a substantial nexus with U.S. territory and will be generally entitled to limited jurisdictional discovery whereas under the latter they must state only a plausible claim of such a nexus.

Kiobel would be a Pyrrhic victory if, to dismiss ATS claims, corporate defendants must have their officers and directors sit for depositions to determine to what extent they contributed to human rights violations abroad. Some of these individuals might be located in the United States but also have formal or informal roles in the entities that are most connected to the alleged violations committed abroad. It is not uncommon for there to be a great deal of overlap among the boards and management teams of a multinational corporation’s subsidiaries.

After the Supreme Court applied the presumption against extraterritoriality in Morrison, plaintiffs filed more cases against foreign defendants under the Exchange Act. While Kiobel will change how ATS claims are pleaded and may make it more difficult for plaintiffs to ultimately prevail, the decision hardly bars ATS plaintiffs from pursuing claims against corporations that are “merely present” in the United States, and the prospect of even limited discovery regarding whether ATS claims “touch and concern” the United States will lead a substantial number of corporate defendants to prefer settlement to further litigation.

[Austen Parrish is the Interim Dean and a Professor of Law at Southwestern Law School in Los Angeles.]

With Kiobel, the general mood among those in the human rights community is pessimistic. Because it curtails use of the Alien Tort Statute, viewing thedecision as a loss is tempting. From this perspective, Kiobel is another indication that the Court continues to reinvent itself with a particular brand of conservative activism, the U.S. remains hostile to international law and its institutions, and corporate interests have won out over the protection of individuals. For others, the Court’s finding that the Alien Tort Statute does not redress claims of human rights violations by foreigners against foreigners on foreign soil is scratched up as win on the side of those pushing for tort reform, for those who believe there is too much litigation in the United States, and for those who courts, as un-elected institutions, need to be carefully watched and constrained in the area of foreign affairs. While those of a more conservative orientation have celebrated the case as ending litigation “run amok,” the reaction among many concerned with protecting human rights has been to decry the result and paint the case as a setback.

But there’s a different way to describe the case than these two narratives: one that’s more positive for international law and its institutions. Viewed through a different lens, Kiobel is a case about whether the United States should privilege unilateralism over multilateralism, and whether it prefers international over pluralistic approaches to global governance. The case may signal a modest retreat from a failed strategy of aggressive American unilateralism (viewed by other countries as illegitimate and legal imperialism) that has taken root in a number of public and private law contexts. In this way, to the extent Kiobel helps to inter unilateral regulation of foreigners for conduct occurring abroad – not just in ATS cases, but also in a wide-range of other contexts – the case is not a setback for international law or human rights, but rather a vindication of them. To reach this conclusion, one must believe that international law should generally be advanced through multilateral consensus, rather than unilateral means. Unilateral extraterritorial regulation of the foreign-cubed variety, where one state purports to dictate conduct in another state’s territory, is in tension with international norms and basic principles of democracy. It’s also a perspective that believes human rights become universal not through some sort of predetermined inevitability, but only through careful building of alliances and legitimacy between different groups joined in purpose. The concern therefore should not be that U.S. courts will become the world’s courts. Rather it’s that any court, in any nation, can assert authority to right what it perceives to be the world’s wrongs. If human rights involves contested ideals, it’s unclear that the human rights community should desire that sort of pluralistic experimentation. While we may be comfortable with a U.S. court developing human rights norms, there’s a significant question whether other courts will develop human rights tendentiously or not, or whether those conceptions of human rights will be more illiberal and non-western, or at least different than ours.

Through this lens, Justice Breyer’s concurrence takes on greater meaning than Chief Justice Roberts’ opinion or even Justice Kennedy’s. The Roberts opinion was hardly surprising. It tracked what the Court had done in Morrison and how the Court’s more conservative justices had generally interpreted the presumption against extraterritoriality. Commentators may disagree whether the use of the presumption was doctrinally correct, but the opinion was broadly consistent with how other jurisdictional statutes have previously been interpreted. Rarely has the Court found that Congress intended to use all the power granted to it under international law or the U.S. Constitution (see, e.g., the interpretations of the…

April 24th, 2013 - 2:45 PM EDT | Comments Off on Kiobel Insta-Symposium: A More Positive Outlook for International Law | Continue Reading »http://opiniojuris.org/2013/04/24/kiobel-insta-symposium-2/ |

As a late-arrival to this Insta-Symposium, I find that many of my thoughts about the Kiobel opinion have already been expressed. Corporate defendants won an important victory in Kiobel, at least for foreign corporations with no more than a “mere corporate presence” in the United States. I had not predicted that the justices would be unanimous in rejecting the ATS claims in this case. But in the most important aspect of the decision, I’m not surprised that we fell just one vote short. Had Justice Breyer been in the majority, I would have found his list of factors permitting ATS cases to be a workable compromise. Since the Supreme Court has changed dramatically over the course of my legal career, I’m no longer surprised to lose cases by one vote. We all predicted that Justice Kennedy would provide the key vote, and the good news is that his short separate opinion left the plaintiffs’ side much to work with going forward.

I particularly appreciate Marty Lederman’s analysis of the divisions within the majority. As he points out, Justices Kennedy, Alito, and Thomas all stated that the decision left significant issues unresolved. The actual holding of the case is quite narrow. Many cases were stayed pending a decision in Kiobel, and I expect that lower courts will come to divergent decisions about which pending cases are still viable. Those disagreements may well require further Supreme Court review. For those of us who are litigators and scholars working in this area, that may be an interesting prospect. But for clients on both sides of these cases, it could be a disaster: years of litigation ahead, including in cases that have already been pending for years.

In this new post-Kiobel legal framework, I join with the contributors who have pointed to state courts as a likely venue for cases that can no longer be litigated in federal court. Most ATS cases have included related state law claims, and some have already been litigated in state courts. Doe v. Unocal, for example, was refiled in a California state court after a federal district court dismissed the ATS claims. The state court litigation continued while the Ninth Circuit heard the appeal, and the state case had been set for trial when the parties settled all of their claims.

Legal doctrine aside, I’ll take a moment to be cranky. Some members of the corporate bar are crowing about the resounding defeat of rapacious trial lawyers who used these cases to shake down virtuous multinational corporations. Let’s be real. Who has made more money from ATS litigation over the past 33 years: plaintiffs, plaintiffs’ lawyers, or defense lawyers? (I assume I don’t need to provide an answer to that rhetorical question.) If there was a moment in which private lawyers thought that filing ATS cases was a route to easy money, they were soon disabused of that notion. Plaintiffs’ attorneys have litigated most of these cases for years without payment — often with no possibility of collecting any fees.

I’ll throw out another question, which is surely more important than my thin-skinned crankiness: Is the world, or even the U.S. legal system, a better place as a result of this decision? I assume that we all recognize that some corporations around the world do bad things, along with their many good or neutral activities. I assume that we all agree that people who are hurt by an evil-doing corporation should have a means to seek relief, somewhere. But it must be apparent to all of us that the global legal system has no effective mechanisms to provide remedies to those who are injured by multinational corporations, hold accountable corporate bad apples, or deter future bad deeds. It may not be the obligation of the U.S. legal system to offer such relief, and it is certainly not the obligation of legal scholars or litigators to assume responsibility for the flaws of the global legal system. But perhaps we might pause for a moment to honor the people around the world who have been maimed and killed by above-the-law corporations, some of whom have just lost their only chance to obtain a remedy, before we proceed with our legal analysis of the Supreme Court’s Kiobel decision. In the absence of workable alternatives, I favor the pre-Kiobel world.

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My friend John Bellinger over at Lawfare can rightly claim credit for keeping the extraterritoriality issue before the Supreme Court in Kiobel. Indeed, the Supreme Court’s conclusion that “principles underlying” the presumption against extraterritoriality apply to claims under the Alien Tort Statute (ATS) represents a victory for the Bush Administration’s legal position in ATS cases, an administration John served with distinction.

That Bush Administration legal position, however, marked a sharp break with past positions of the United States Government regarding extraterritorial application of the ATS. In 1980, the Carter Administration argued in Filartiga v. Pena-Irala that the ATS reaches claims by one alien against another alien for torture committed abroad. Indeed, the United States said that “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.” In 1995, the Clinton Administration successfully supported application of the ATS to foreign non-state actors for human rights violations abroad in Kadic v. Karadzic, a decision that opened the door to the wave of corporate cases that shortly followed. Even the intervening Reagan Administration did not take the position that the ATS did not apply to conduct abroad.

It was not until 2004 that the United States argued for the first time, in Sosa v. Alvarez-Machain, that the ATS did not apply extraterritorially. The extraterritorial nature of claim in Sosa could hardly have escaped the notice of the Court, since the parallel Federal Tort Claims Act suit against the United States was dismissed under the FTCA’s foreign country exception. Yet not a single Justice in Sosa adopted the Bush Administration’s extraterritoriality position, and there are many parts of the Sosa opinion that only make sense on the assumption that the ATS applies to conduct abroad. Undaunted, the Bush Administration continued to press the extraterritoriality argument in nine nearly identical briefs filed between 2004 and 2008. Not a single appellate court adopted the argument—and many expressly rejected it. Not a single appellate court, that is, until the Supreme Court in Kiobel.

But upon reflection, there is also less to the victory of the Bush Administration’s position in Kiobel than meets the eye. Part IV of the Court’s opinion, coupled with Justice Kennedy’s observation that the opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute” and Justice Alito’s complaint that Kiobel “leaves much unanswered,” is a recipe for continued litigation. The Court’s observation that “it would reach too far to say that mere corporate presence suffices” should send chills down the spines of corporations domiciled in the United States (and their general counsels). Nor is the Court’s grant of certiorari in DaimlerChrysler AG v. Bauman likely to bring greater clarity. Although that case arose in the context of an ATS suit, the only issue on appeal concerns personal jurisdiction over a foreign company—an important issue to be sure, but one largely unrelated to the ATS and of little help to U.S. companies.

Chief Justice Roberts’s opinion in Kiobel invites Congress to clarify its intent with “a statute more specific than the ATS.” Congress did something similar in 1992 when it passed the Torture Victim Protection Act, authorizing civil claims for torture and extrajudicial killing abroad, while incorporating substantive definitions and procedural safeguards. The human rights and business communities would be well advised to seek common ground on a reasonable statute. The alternative would seem to be decades more litigation to answer the questions that Kiobel leaves open.

April 23rd, 2013 - 5:13 PM EDT | Comments Off on Kiobel Insta-Symposium:The Pyrrhic Victory of the Bush Administration Position in Kiobelhttp://opiniojuris.org/2013/04/23/kiobel-insta-symposiumthe-pyrrhic-victory-of-the-bush-administration-position-in-kiobel/ |

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